Posts Tagged ‘artist rights’

“ACTA2” Trolls Publish Hit List on Pastebin of Artists who Supported Copyright Directive in Europe

June 28, 2019 Comments off


Crispin Pastebin

The “ACTA2” reference is a little inside baseball for the US audience–ACTA was a multilateral executive agreement (not a treaty) that would have strengthened copyright around the world.  Google opposed ACTA and drummed up astroturf opposition in Europe–which deserves a second look now that major newspapers have confirmed the extent of the Cambridge Analytica-style gaslighting campaign in Europe that Google and Facebook marshaled against the Copyright Directive.

“ACTA2” is a weak attempt to compare the Copyright Directive to ACTA (“ACTA2”, get it?) in hopes of mobilizing Europeans to reject their cultural monuments and embrace American multinational corporations who pry into their most private information and sell it to advertisers.  Oh, yeah.

Chris Castle on Artist’s Right to Streaming Exclusives

April 5, 2017 Comments off

The MTP Podcast: Michelle Lewis and Kay Hanley of SONA and David Lowery on DOJ’s “Union Busting” Gambit Against Songwriters

August 17, 2016 1 comment

In an explosive conversation, Michelle Lewis and Kay Hanley talk with David Lowery and Chris Castle about Songwriters of North America, their experiences with lawyers from the Department of Justice Antitrust Division in the lead-up to the DOJ’s decision on “100% licensing,” and disingenuous behavior by the government’s lawyers that crossed the line into “union busting.”

Michelle and Kay

Michelle Lewis and Kay Hanley

—in an ex parte communication, Antitrust Division Section Chief David C. Kully advised a witness in an ongoing Justice Department inquiry to withdraw from ASCAP as a solution to 100% licensing, knowing she was represented by counsel.

—Justice Department lawyers chose to conduct meetings and telephonic communications with songwriters in which DOJ lawyers read aloud from proposed text of their 100% licensing statement in an effort to build a false consensus among songwriters and refused to provide a written draft of the statement for public comment.


—At the direction of former Google lawyer and DOJ official Renata B. Hesse, the lawyers also told SONA members that no transcripts existed of these telephonic communications.  If true, it is highly unusual for the Justice Department to engage in such contacts with interested parties without preserving a record of such meetings to be made available to the public and preserved as customary federal record keeping.  The lawyers’ statement is more likely another lie or obfuscation.



Show notes:

Links to documents we discuss on the MTP Podcast with Michelle Lewis, Kay Haneley, David Lowery on the DOJ’s new policy on 100% licensing.

Songwriters of North America Website


The Trichordist


Podcast theme from “March of the Billionaires” written by Davey Faragher, Johnny Hickman, David Lowery & Michael Urbano, performed by Cracker from their 2014 album, Berkeley to Bakersfield used courtesy of Cracker.

Doc McStuffins

Department of Justice Statement on 100% Licensing

MIC Coalition Letter to DOJ Lawyer Renata Hesse

BMI’s Premotion Letter to Judge Stanton re Obama Justice Department Ruling on 100% Licensing

The Obama Administration Is Lame Ducking An Unworkable Burden on Songwriters: 4 Reasons Why It’s Bad Law by Chris Castle (Huffington Post)

Guest Post by Stephen Carlisle: ASCAP and the Terrible, Horrible, No Good, Very Bad DOJ Decision That’s Going to Create Chaos in the Music Industry

MusicTechPolicy Podcasts on SoundCloud

Subscribe to MusicTechPolicy Podcast on iTunes

World Watch: Author John Degen’s Seriously Must Read Post “5 Seriously Dumb Myths About Copyright”

April 26, 2015 Comments off

Canadian author John Degen (@jkdegen) wrote a funny and informative post that I recommend to anyone interested in artist rights and copyright, “5 Seriously Dumb Myths About Copyright.”  And this means you, journalists–especially you journalists who uncritically write to the press release from the Electronic Frontier Foundation or the sainted Creative Commons.

John’s post has been widely distributed (was the #2 most read post on Medium), but if you haven’t read it, please take a few minutes.

We’ve known John for years, but in case you don’t know his background:

John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organization representing more than 2000 professional authors. He is also Chair of the International Authors Forum, which currently represents close to half a million professional authors worldwide.

Straight Out of Rosedale: Mississippi’s Sudden Interest in Limiting State Lawsuits While Google Sues Attorney General Jim Hood

February 8, 2015 3 comments

You can’t make this stuff up.  It reads like a subplot of a John Grisham novel with that vague warning that it could swing back across the stage as a plot twist in the third act to smash into the ending with a vengeance, carrying streaming guidons reading  “Here am I, the one true ending, send me.”   A single bugle sputtering a few bars of Garry Owen in the darkest gloom of dawn at Vicksburg.  The General, perhaps.

In a strange twist of fate worthy of Robert Johnson at the crossroads, a number of events transpired in recent weeks involving Mississippi State Attorney General Jim Hood who is being sued by Google for having the audacity to investigate a variety of potentially unsavory business practices having to do with sex, drugs and yes, rock and roll.

The timeline on this is that Hood served Google with a subpoena last October 21 asking for documents relating to Google’s business practices–what Google itself does–mostly involving how the company handles human trafficking, advertiser fraud and why the Google stockholder settlement over the $500,000,000 forfeiture Google paid the United States has a section that addresses how Google provides golden parachute terminations for employees convicted of felonies under state and federal law.  And also a few questions regarding the hundreds of millions of DMCA notices that Google receives for copyright infringement.

Then there was the Sony hack, and thanks to North Korea some stolen documents circulated on the Internet including some confidential emails from the MPAA.  You have to live under a rock not to know the rest of those facts.  And–shocker–people in the business of producing movies don’t like Google much.  According to Google, somehow the stolen documents show that MPAA is involved with helping the state develop a case against Google.

Google then sues Hood in federal court in Mississippi and tries to somehow transform Hood’s investigation from a case about Google’s business practices and compliance (with Google’s non-prosecution agreement with the Criminal Division of the Department of Justice) into a case about infringing materials on Google’s various platforms–all essentially based on the documents stolen courtesy of North Korea.  And Google wants you to believe that somehow there’s a SOPA angle about all this–a stretch that didn’t impress many people not on the Google payroll.  As Congressman Issa said, if there’s a scandal here at all, it’s that years after SOPA, there’s still the same problem that SOPA was trying to solve however inartfully.

Google is trying to get an injunction to stop Hood’s investigation.  Hood’s brought no case as yet and has only asked Google to respond to his subpoena.  Google probably has dozens of open subpoenas around the world, so this is nothing new.  Google could very easily respond to the subpoena and reject the lines of questioning its lawyers think are inappropriate or wrong–essentially the same work that went into asking for an injunction.  But they wanted a court–a federal judge–to order a state law enforcement officer to stop the investigation into violations of state law.

Of course, the federal judge denied Google’s request but asked the parties to brief their positions, which they did.  And here’s where it gets weird.

First, Google filed its response to Hood and a handful of the trade associations and lobby shops the company funds filed “friend of the court” responses as well.  This on February 2.  Vox Indie has a great post describing the various funding relationships between Google and the “amici”.  (UPDATE:  Mike Godwin wrote an op-ed in the Clarion-Ledger–Godwin not only works of the R Street Institute (funded by Google) but was formerly at Public Knowledge (funded by Google), the Center for Democracy and Technology (funded by Google) and the Electronic Frontier Foundation (funded by Google).  He also attended Lamar High School in Houston, go Redskins!)

On January 19, a Mississippi state legislator introduced Mississippi House Bill 1201–legislation that would limit the Mississippi attorney general’s ability to sue on behalf of the state for any reason.  Such as a potential lawsuit against or criminal prosecution of Google.

On February 3, Hood was in Washington, DC to announce a settlement of claims against Standard & Poors for doing something that sounded a lot like cooking the credit ratings of companies that were involved in the 2008 mortgage scandals.  Hood was a leader in the several states in the suit against S&P.

According to the Associated Press:

Attorney General Jim Hood says in a news release that Mississippi sued S&P in 2011, joining with Connecticut, the first State to sue in 2010. By 2013, the Justice Department and 17 other states filed similar lawsuits against S&P.

Standard & Poor’s is paying about $1.38 billion in the settlement announced Tuesday over ratings issued from 2004 through 2007.

Hood says the credit rating agencies were just as culpable as the investment banks in causing the financial crisis. Hood says the credit rating agencies held themselves out to be objective and independent.

Oh, and how much was the settlement again?  That’s $1.38 billion with a B.  But let’s limit the state AG’s ability to go after bad guys.

What happened with Mississippi House Bill 1201?  It passed out of committee:

A House judiciary committee passed a bill today that would require the state attorney general to gain approval from an oversight committee of the governor, lieutenant governor and secretary of state to file any lawsuit on behalf of the state for more than $250,000.

State Rep. Ed Blackmon Jr., a member of the House Judiciary A Committee, called the measure partisan politics. He voted against it.

House Bill 1201 was filed by the chairman of the committee, state Rep. Mark Baker, R-Brandon, who has been discussed as a potential candidate for attorney general this year.  [Mr. Baker was also the Republican Leader of the Mississippi House Republican Conference from 2008 to 2012 according to his official biography.]

State Attorney General Jim Hood, the lone statewide Democratic official, has been criticized by some Republicans for hiring outside attorneys to represent the state in litigation, but at the same time, through litigation, Hood’s office is responsible for bringing hundreds of million dollars into the state treasury.

And then on February 5, Bill 1201 failed to pass the Mississippi House:

Mississippi House members are rejecting new restrictions against Attorney General Jim Hood’s ability to file lawsuits or hire outside lawyers.

The House voted 66-49 Wednesday to reject a House Bill 1201, which would require the governor, lieutenant governor and secretary of state to approve the attorney general’s filing of any lawsuit in which the state could win more than $250,000. House Judiciary A Committee Chairman Mark Baker, R-Brandon, could bring the bill back up for more debate….Baker said Hood’s unfettered ability to bring lawsuits is improperly setting state policy, negatively affecting Mississippi, and robbing those who are sued.

Hood and supporters say House Bill 1201 would put unconstitutional restrictions on the attorney general’s power….

“This may be the most rancid, politically motivated bill I’ve seen before this Legislature,” said Rep. Steve Holland, D-Plantersville.  

Lawsuits by attorneys general have been a long-festering issue in Mississippi politics, running back to when Hood’s predecessor, Democratic Attorney General Mike Moore, sued the tobacco industry in the mid-1990s, arousing the ire of Republican Gov. Kirk Fordice even as Moore won millions for the state. [$4.1 billion, actually.]

Republican Gov. Haley Barbour — who was a tobacco lobbyist in Washington during Mississippi’s lawsuit against the industry — used the tobacco money to help prop up the state budget during the recession. The payments from the tobacco lawsuit settlement are still being spent under the current Republican governor, Phil Bryant.

So all in all, a pretty good week for Jim Hood.  Bizarre, but good in the end.  This is particularly true when you consider that there are potentially dozens of additional state attorneys general who are also investigating Google and also that Mike Moore is evidently advising Hood.  This would make sense if, like the tobacco litigation and the S&P litigation, Mississippi is joining with other states to pursue Google. Moore was the first state attorney general to sue the tobacco companies, resulting in a $236 billion settlement, of which $4.1 billion went to Mississippi.  (Google is no stranger to multistate litigation–it settled a privacy case with 37 states in 2013.)  Oh, and Mike Moore got a part in a Hollywood movie.

Don’t watch The Insider on a dark and stormy night.  Let’s just say it’s not The Internship.

As Andrew Orlowski wrote in The Register:

Google’s success in “assassinating” a democratically-elected legal opponent last week raises troubling questions about corporate power and accountability. The feisty attorney for the USA’s poorest state is now trying to make peace, after being on the receiving end of a highly unusual lawsuit from Google.

Even if you will have no truck with the Hollywood lobbying machine, you should know the facts. A global corporation which is expected to bank $60bn in revenue this year and which is worth $382bn, has silenced an elected prosecutor.

Google’s income is 30 times that of the General Fund in Mississippi; its market valuation is four times the entire state’s GDP. What did Jim Hood do to make himself Google’s enemy?

Based on Hood’s response to Google’s attempt to stop his investigation, I’m not so sure that he’s giving into “rancid” tactics.  But ask yourself this:  If this were Big Tobacco going after former Mississippi Attorney General Mike Moore, how would you feel about Google’s tactic?

Or Enron?

Or Drexel Burnham Lambert?

So why should Google be special?

UPDATE:  Judge Wingate–evidently Hood’s long-time political enemy–ruled against Hood.  The case is currently on appeal to the U.S. 5th Circuit Court of Appeals.  This should not prevent Hood from pursuing state law claims against Google or anyone else.

The Revolution Shall be Monetized: Zoë Keating Confirms YouTube Learned Nothing From Indie Labels

January 24, 2015 2 comments

…there was lunch in the larger, first floor cafeteria where, in the corner, on a small stage there was a man, playing a guitar, who looked like an aging singer-songwriter Mae’s parents listened to.

“Is that….?”

“It is,” Annie said, not breaking her stride.  “There’s someone every day.   Musicians, comedians, writers….We book them a year ahead.  We have to fight them off.”

The singer-songwriter was signing passionately…but the vast majority of the cafeteria was paying little to no attention.

“I can’t imagine the budget for that, ” Mae said.

“Oh god, we don’t pay them.”

The Circle, by Dave Eggers

Once again, Zoë Keating provides a leading voice for artists rights and leads by personal example.  In her compelling viral blog post, “What Should I Do About YouTube,” Zoë describes a recent encounter with the demands of YouTube the definitive “new boss” monopoly video service owned by Google.

She asks her community for advice in making a decision about whether she should allow herself to be bullied by Google.  The “decision” that she must make crystalizes what my friend Rick Carnes (President of the Songwriters Guild) meant in the phrase he coined to describe how Google uses the DMCA: Notice and Shakedown.

Why is this an issue?  As Zoë tells us:

I am independent because I didn’t want a bunch of men in suits deciding how I should release my music. For 10 years I have managed to bushwhack a circuitous path around them but now I’ve got to find a away around the men in hoodies and crocs (I’m sorry, that was low, but that story was so funny).

Or as we say around MTP, meet the new boss, worse than the old boss.

Google is routinely and continually misusing the privileges that Congress provided in the now hopelessly outdated DMCA “notice and takedown” safe harbor.  If the 345 million takedown notices Google received last year alone for search alone doesn’t confirm that to you, Zoë’s description of the YouTube shakedown should make it crystal clear.

By telling her personal story, Zoë identifies adroitly the future of YouTube.  First, Zoë’s experience clearly demonstrates that Google learned nothing from its hugely bad press experience last year with the world’s independent record companies.

It also shows that Google fully intends to profit from the YouTube “bad acts” window–the period of time from when a video is posted and when Google ultimately take it down that gives “windowing” a whole new meaning.  This bad acts window is not limited to copyright infringement; it can include videos selling illegal drugs, recruiting young women into prostitution or young men into the jihad, demonstrating how to shoot heroin, sex tourist home movies, holocaust denier videos (illegal in many countries where YouTube makes them available), or plain old skin head racist videos.  MTP readers will require no citations for these videos, but if you are new to the blog just look under the “Bad Acts Videos” tab.

Moreover, Google’s treatment of Zoë is surely not limited to Zoë–it’s probably exactly what Google is doing to tens of thousands of artists.  If anything, Zoë probably got the star treatment version.  This is very Googlely–Google’s version of an “artist relations” team comes and tells you nicely how they are going to run roughshod over you (NP: Everything is Awesome).

Remember–the indie trade association IMPALA has filed an antitrust complaint against Google in Brussels over the way Google handled the MusicKey roll out which essentially involved the same deal.  So does Google say, that didn’t really work out too well for us, maybe we should handle it differently with the independent artists?

Nope–Google says, unfortunately, the indie labels fought back, but the independent artists cannot.  So Google says let’s screw them even harder.  As Zoë concludes her blog post:

What should I do? As much as it makes me grind my teeth, does having all my music forced onto Youtube’s music service really just not matter all that much? Should I just close my eyes and think of England?

Maybe after writing this blog Google will make the choice for me. They will block my channel and I will have to decide whether to block those 9,696 videos….and anger 9,696 fans. The usual people will talk about it for a day or two (*5) and then it and I will be forgotten.

Anyone starting up a new video service?

We’ll see.  Because what Zoë is really pointing to is the next step in the evolution of multichannel networks–leaving YouTube altogether and en masse.  Why would you want to drive traffic to YouTube for free when all they do is jack you around?  And speaking of “thinking of England”:

When I warned them that Britain would fight on alone whatever they did, their generals told their Prime Minister and his divided Cabinet, ‘In three weeks England will have her neck wrung like a chicken.’

Some chicken.

Some neck.

Winston Churchill, Ottawa, Dec. 30, 1941

Bit Torrent Logic: How Spotify Brought on Their Own @TaylorSwift13 Problems

November 6, 2014 3 comments

Is he mad? Anyway, there’s something on his mind, as sure as there must be something on a deck when it cracks.

Moby Dick, by Herman Melville

When you look at all the sanctimony that Spotify has ginned up about Taylor Swift’s withdrawal from the service, only the erudite Ben Sisario has put his finger on the real reason:

In the past, Ms. Swift has employed a “windowing” strategy for streaming services, withholding new material for a while to spur CD and download sales; Adele, Coldplay and Beyoncé have done the same. With “1989,” however, Ms. Swift and her label, Big Machine, went further, removing her entire catalog from Spotify and putting the streaming service on the defensive.

The dispute with Spotify — whose pitch to subscribers is largely based on its ability to deliver the music people want to hear — appeared to have arisen from a disagreement over how her music would be offered there. Spotify has both free and paid tiers, and Ms. Swift and her label wanted access to her music restricted to its paid version, which provides higher royalty rates.

Spotify denied this request, so last week, Big Machine asked to have her entire catalog taken down, according to three people with knowledge of the discussions who were granted anonymity because the talks were private. In a statement this week, Spotify defended its business model and said that Ms. Swift was welcome to return….

Other streaming outlets like Rhapsody, Beats Music and Google Play Music All Access have kept Ms. Swift’s catalog, because they agreed to keep her music out of free tiers, or offer only paid versions. (emphasis mine)

Naturally this issue was clearly disclosed in Spotify’s first blog post on the subject, right?  No, actually not a word.

On Taylor Swift’s Decision To Remove Her Music from Spotify

We love Taylor Swift, and our more than 40 million users love her even more – nearly 16 million of them have played her songs in the last 30 days, and she’s on over 19 million playlists.

We hope she’ll change her mind and join us in building a new music economy that works for everyone. We believe fans should be able to listen to music wherever and whenever they want, and that artists have an absolute right to be paid for their work and protected from piracy. That’s why we pay nearly 70% of our revenue back to the music community.

PS – Taylor, we were both young when we first saw you, but now there’s more than 40 million of us who want you to stay, stay, stay. It’s a love story, baby, just say, Yes.

No, Spotify pushed out squid ink about “building a new music economy.”  Not by converting ad supported users to subscriptions as it turns out.  No, the “new music economy” that Spotify has in mind is the free service.  Because that’s why Spotify blew the deal.  And it is this obsession that is going to be Spotify’s downfall.  Well, call me Ishmael.

daniel-ek-spotify-ceo-2012BilloardSPOOF 2

So let’s get this straight.  When it first started, Spotify induced artists to take an extraordinarily bad, non-transparent and unsustainable royalty deal on the free service with a promise–Spotify will move users to the premium service quickly because the the free service pays those horribly low royalties with no minimums.

How might you get users of the free service to take the premium service?  Here’s an idea.  Give them something they want that they can only get on the premium service.

You know, like a hot new album.  You know, like, oh, I don’t know.  Taylor Swift comes to mind.

That approach certainly made sense to all of Spotify’s competitors, but not to the Cult of Spotify.  No, the Cult of Spotify wanted it their way or the highway, and they were so sleazy about it that they would not respect the artist’s wishes when she said no.  Then they were REALLY sleazy by launching a PR campaign against her without disclosing to their buddies in the press that the problem that Spotify has with Taylor Swift is one of Spotify’s own making.  

So why would Spotify do this…to…drive…up…premium subscriptions?    Wouldn’t you think that Spotify would want to take the same deal that all their competitors took?  If that the point was paying higher royalties on the premium service?  I mean, selling subscriptions?

What would make it worth the risk of attacking an artist in public because she wouldn’t take the hillbilly deal?

I have no idea what the brain trust at Spotify came up with to justify this cult-like public shaming on a level we haven’t seen since Napster (with the possible exception of Bob Lefsetz’ attacks on Lily Allen).  But if I were going to play “Name that Fear” for Spotify, here’s one that seems to fit.

What if they all did it?

And by “they” I mean all the big releases?  That would be logical, right?  People at labels will say, “I want more of that” because their jobs depend on actually selling stuff.  They have to justify marketing campaigns for the new releases.  And what drives users to streaming services is the marketing campaigns behind the records that the artists record and market.  And that marketing spend is justified by sales.  It will never be justified by royalties from the free service at Spotify (or Pandora for that matter).

If Spotify can’t convert those users to premium subscribers fast enough to justify the marketing spend on the records that Spotify needs to compete, then remember this:  Nobody owes Spotify a living.  The other services seem to be able to cope with this situation just fine, maybe because they understand the basic rule:  They need hits, and hits don’t need them.

So if artists begin thinking that they want to do what Taylor did and just release their titles in the premium services, then the labels will begin to have an artist relations problem, which is always a good reason to not do something.  Particularly if the thing you’re not doing is economically stupid in the first place and the artists–your partners–are correct.

The next logical step after pulling all new releases from the ad supported services is to pull all releases from the ad supported services.  And if I had to guess, that’s what’s driving Spotify’s orchestrated attack on Taylor Swift (and why Google would be happy to use Spotify as a stalking horse, but that’s another story).

We can be glad that there are actual..whatchamacallit…journalists, that’s right.  That there are actual journalists like Ben Sisario who actually get the story and don’t just write the press release.

It is also not to be forgotten that Big Machine did an excellent job of working the take down notices which essentially made piracy more manageable on the “1989” title.  So if the reason that Spotify gives for even having the free service is largely managed, then why use the free service at all.

For anything.

And if Spotify doesn’t like where this is heading, then they need to find a new gear on that premium service conversion problem.

This experience also raises an issue for another “exposure” enthusiast, Pandora.  More about that later, but one would think that the CRB would be interested in knowing what happens in the market when an artist doesn’t take the hillbilly deal.

So the Cult of Spotify has now created yet another problem for themselves after the string of artist relations debacles on what was to have been a charm offensive tour in New York, Nashville and Los Angeles.  Who would want to do business with some tech company that attacks artists when the company doesn’t get its way?  Sounds like Bit Torrent logic to me.

PS After posting this, I found a great piece by Stuart Dredge on Music Ally that also correctly identifies the issue.

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